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Kuldip Parkash Vs. Assistant Controller of Estate - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Chandigarh
Decided On
Judge
Reported in(1985)11ITD359(Chd.)
AppellantKuldip Parkash
RespondentAssistant Controller of Estate
Excerpt:
.....penalties under section 73(5) of the act, in the sums of rs. 3,000 and rs. 5,000 sustained by the appellate controller instead of rs. 6,000 and rs. 15,000 levied by the assistant controller, is contested.2. before the learned counsel for the accountable person, mr. d.s.gupta, could address the bench on the grounds raised in these two appeals, the learned departmental representative, mr. c.l. jain, came forward with a preliminary objection that the appeals are not maintainable. according to him, the appellate controller could not entertain the first appeals of the accountable person, as there is a bar available as per section 62 of the act that unless duty was paid, no appeal would lie before the appellate controller. the learned departmental representative was, however, fair enough to.....
Judgment:
1. In these two appeals under the Estate Duty Act, 1953 ('the Act'), levy of penalties under Section 73(5) of the Act, in the sums of Rs. 3,000 and Rs. 5,000 sustained by the Appellate Controller instead of Rs. 6,000 and Rs. 15,000 levied by the Assistant Controller, is contested.

2. Before the learned Counsel for the accountable person, Mr. D.S.Gupta, could address the Bench on the grounds raised in these two appeals, the learned departmental representative, Mr. C.L. Jain, came forward with a preliminary objection that the appeals are not maintainable. According to him, the Appellate Controller could not entertain the first appeals of the accountable person, as there is a bar available as per Section 62 of the Act that unless duty was paid, no appeal would lie before the Appellate Controller. The learned departmental representative was, however, fair enough to admit that neither the revenue is in cross-objection nor has filed any appeal before us against the orders of the Appellate Controller. When it was pointed out to him that so far maintainability of appeals before the Tribunal is concerned, the Tribunal is authorised to entertain an appeal against any order passed by the Appellate Controller, he was unable to point out any bar under the Act on the Tribunal. He, however, at that stage submitted that the case may be adjourned as the revenue intends to move the Appellate Controller with a petition for rectification. He relied on the case of Navin Chandra Bhimji v. CED [1979] 116 ITR 465 (Cal.).

3. The learned Counsel for the accountable person in respect of both these appeals relied on Section 63 of the Act and submitted that there is no bar on the Tribunal entertaining an appeal filed by the accountable person. He further submitted that the revenue is neither in cross-appeal nor in cross-objection. He also vehemently argued that for future proposed action of the revenue, it would be great injustice to the accountable person in case the appeals are not decided by the Tribunal on merit.

4. After taking into consideration the rival submissions, we find the following uncontroverted facts: b. The accountable person was granted instalments on the basis of a petition before the revenue authorities in respect of payment of total taxes.

c. The accountable person still defaulted in payment and two penalties under Section 73(5) in sums of Rs. 6,000 and Rs. 15,000 were levied by the Assistant Controller.

d. When the said two penalties came to be disputed before the Appellate Controller, he reduced the penalties to Rs. 3,000 and Rs. 5,000.

e. Against the above said two orders, it is only the accountable person who is in appeal before the Tribunal.

f. These two appeals were filed as early as on 10-2-1983 before the Tribunal and till today, i.e., 28-6-1984, when the appeals came for hearing, there is no petition filed by the revenue before the Appellate Controller regarding maintainability of the appeals at his stage in the form of rectification, etc.

g. So far as challenge of the accountable person to file an appeal before the Tribunal is concerned, it is clear as per Section 63 that the accountable person and the revenue, if not satisfied with the correctness of any order passed by the Appellate Controller, could come before the Tribunal in second appeal within stipulated time under the Act.

h. The revenue is not in appeal nor has filed any cross-objection against the order of the Appellate Controller.

In the background of the above stated facts, reliance of the learned departmental representative on the case of Navin Chandra Bhimji (supra) is misplaced due to distinction in facts. In that case, the Appellate Controller himself had held that appeal filed by the accountable person was not maintainable, as the demand had not been paid in accordance with the proviso to Section 62(1). It was at the instance of the accountable person, who came in appeal before the Tribunal on various contentions besides maintainability of appeal. The department contended that the appeal was not maintainable and it was on this preliminary objection that the Tribunal held in that case that the appeal before the Appellate Controller was not maintainable. Before us, the question regarding maintainability of appeals is not there for consideration, which could only be at the instance of the revenue, because the Appellate Controller heard the appeals on merit and decided the same, against which maintainability could only be questioned by the revenue, which is not done. The revenue as respondent, without filing any appeal of its own, can utmost support the order of the Appellate Controller.

In the said case of Navin Chandra Bhimji (supra), the Appellate Controller held the appeal to be not maintainable. This action of his was challenged by the accountable person and then the revenue supported the finding of the Appellate Controller and the Tribunal confirmed those findings that the appeal was not maintainable and it was against the said Tribunal's decision that the accountable person went before the High Court that their Lordships adjudicated the issue and answered the question in favour of the revenue that the appeal was not maintainable. The facts of the instant case are quite different.

5. Regarding request of the revenue that the appeals may not be heard for the present as they propose to move a petition before the Appellate Controller, we are unable to accede to its request because, as above said, it was as early as on 23-12-1982 that the two orders were passed by the Appellate Controller and the revenue is too late in rising from its slumber as late as point of time when the appeals, preferred by the accountable person, have come for hearing before the Tribunal. The preliminary objection of the revenue in respect of both these appeals is, therefore, rejected.

6. Coming to the merit, the learned Counsel for the accountable person submitted that because of huge demand to be paid on account of voluntary disclosure in respect of their group, including the deceased, funds were not available for this and, therefore, the department was requested to grant instalments. He submitted that in spite of the fact that reasonable cause pleaded by the accountable person had been admitted as such by the Appellate Controller, she did not knock down the total penalties but reduced the same.

7. The learned departmental representative, on the other hand, in this regard submitted that the accountable person is a very rich man and this petty demand of little over Rs. 1 lakh was nothing, and one who could pay heavy taxes on voluntary disclosed income and wealth could also pay this duty.

8. After taking into consideration the rival submissions and going through the facts available on record, we find that the revenue itself has granted instalments to the accountable person in respect of total demand of Rs. 1,09,723 at two stages, and when the two penalties levied for nonpayment of estate duty came before the Appellate Controller, she in the case of subsequently repeated penalty of Rs. 15,000, after penalty of Rs. 6,000 was already levied, held in para 3 of her order as under: 3. I have considered the submissions made on behalf of the appellant. I have also perused the relevant penalty order. It is correct that Kuldip Parkash group of cases had made huge disclosures, due to which they had to deposit the tax amounting to about Rs. 18 lakhs. The tax in question was to be deposited by 31-3-1977, otherwise, the disclosure would have become invalid. As such, there is substantial truth in his contention that he was prevented due to financial stringencies from depositing the demand.

Keeping in view all the facts and circumstances of the case, it is held that the appellant was prevented due to reasonable cause in not paying the demand in question. However, since the demand has not been paid, it would be reasonable to sustain the impugned penalty to Rs. 5,000 as against Rs. 15,000 levied by the ACED. The appellant is thus entitled to a relief of Rs. 10,000.

From the above finding, it is clear that it has been held by the Appellate Controller that the accountable person was prevented due to reasonable cause in not paying the demand in question. If it is so, she was not justified to sustain even a portion of the penalties. Both the penalties are, therefore, cancelled.


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